Blog

December 15th, 2017

Disinheritance of a Child by their Parent

Can a parent in British Columbia cut one or more of their children from their will, or leave more to one child than another? Those are not simple questions to answer. However if one of your parents recently died leaving little or nothing to you, here are some of the issues that need to be considered.

Obviously if there is a surviving spouse who was dependent financially on, or shared ownership of property with, the deceased, the interests and concerns of that person will be front and centre. Typically spouses leave their estates to each other either completely or they grant the survivor a life interest in their estate meaning that the survivor is entitled to use the income generated from the capital of the estate for the rest of his or her life. And if the spouses owned a house in joint tenancy, then the deceased spouse’s interest would pass automatically to the surviving joint tenant leaving that person the sole owner of the property.

On the other hand, if the parent that is deceased was either divorced or predeceased by his or her spouse, the distribution of their estate typically becomes more important to the children of that parent because they are likely to be the beneficiaries. If the surviving parent’s will leaves everything equally, there is usually little cause for complaint.

Sometimes however the parent (the surviving mother for example) may have transferred an important asset in her lifetime to one child only. It could be that one child was added to the title of the family home as a joint tenant so that when mother dies, the house goes entirely to that child and does not form part of mother’s estate. If the value of that property is large in comparison to the mother’s estate, that child will end up with a disproportionate share of the mother’s assets. His or her siblings may regard this result as unfair to them.

The other likely reason that children may be upset is because the will itself treats the mother’s children differently. One child may receive more of the estate compared to their siblings or in extreme cases, one or more children may be disinherited entirely.

If either of these unhappy scenarios occurs, the children who believe that they were not treated fairly in their deceased parent’s estate planning may be able to challenge that plan, either by attacking the transfer of property while the mother was still alive, or by challenging the will itself.

If a transfer of an interest in land to a child (or someone else) in joint tenancy is challenged, it is typically because it is believed that the parent did not intend that the transferee would receive that land as a gift. Rather the parent intended that the property would be held in trust for their estate by the surviving joint tenant. The law relating to these kinds of resulting trusts is discussed in a separate blog on this website entitled: Disputes over Land Held in Joint Tenancy When One of the Joint Tenants Dies.

However if the will is challenged, there is no question of what the will maker intended, and it is those intentions themselves which are attacked. The basis for such an attack is a British Columbia statute (the Wills Estate and Succession Act or WESA, section 60) that provides as follows:

Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

As we are considering in this blog the rights of disinherited children only, we will not comment here on the rights of a spouse under this legislation except to note that disinherited spouses typically have an even stronger claim than independent adult children.

The determination of whether a will makes adequate provision for someone involves a consideration of what legal and moral duties were owed by the will maker to their successors. Independent adult children are generally considered to have a moral claim to receive part of their parent’s estate subject to a number of factors including whether they are other claimants (such as those of a spouse) and the size of the estate, based on the precedent setting Supreme Court of Canada decision in Tataryn v Tataryn Estate. Other relevant factors include whether the claimant contributed to the parent’s estate, the standard of living of the claimant and whether he or she is in financial need.

It is noteworthy that when the Court considers the size of the will maker’s estate for these purposes, it will take into consideration significant gifts received by family members from the will maker when he or she was still alive. Therefore for example, if the will maker left nothing to a child in their will but had made a sizeable gift of money or property during the will maker’s lifetime, the gift will be part of the assessment whether the will maker satisfied their moral obligation to the child. Conversely if the will treats all children equally but one child received a large gift before the will makers death, that may be evidence that the will maker did not satisfy his moral obligations to the other children.

Exceptions to that moral duty may exist where the will maker had “legitimate concerns” about the child, for example if the child mistreated or abused the will-maker in some way in the past or had been estranged from the parent for reasons the Court considers to have been the fault of the child. (Other reasons for disinheriting a child may not be considered by the Court as legitimate, for example, disinheritance because the child married someone the will maker did not like or expressed viewpoints the will maker opposed.)

Therefore subject to a consideration of a number of these factors, it may be possible for a child to have a will varied by the Court if he or she receives nothing or only a nominal gift.